Monday 20 May 2019

EPA’s Attempt to Weaken Coal Ash Regulations Is a Giveaway to Industry

Dominion's Possum Point plant, aerial photo by Alan Lehman from PRKN, 2016. Dominion's Possum Point plant, aerial photo by Alan Lehman from PRKN, 2016.

In 2015, Waterkeepers Chesapeake joined more than a half-million comments from people supporting the safeguards that U.S. Environmental Protection Agency (EPA) is now seeking to remove in its proposed rule. The 2015 coal ash regulations were imposed after lengthy negotiations with utilities, other industries and environmentalists. Relaxing those common sense, science-based rules now – even as utilities are in the process of reporting the extent of coal-ash contamination and devising plans to address it – would mean the lessons learned from the coal ash accidents in Tennessee and North Carolina are being ignored. The proposed rule (‘remand rule’) would once again put our water and public health at risk – with more than 1.5 million children living near coal ash storage sites and seventy percent of all coal ash impoundments disproportionately impacting low-income communities – this is a risk that the EPA should be unwilling to take.


Coal-fired power plants in the United States burn more than 800 million tons of coal every year, producing more than 110 million tons of solid waste in the form of fly ash, bottom ash, scrubber sludge and boiler slag—commonly known as coal ash. Hazardous chemicals present in coal are concentrated in the ash when coal is burned. Consequently, coal ash contains a toxic brew of carcinogens, neurotoxins, and poisons—including arsenic, boron, cadmium, hexavalent chromium, lead, lithium, mercury, molybdenum, selenium, thallium, and radioactive substances. These toxics raise the risk for cancer, heart disease, and stroke, and can inflict permanent brain damage on children. When this dangerous waste is not disposed of properly, the toxic chemicals are released to air, groundwater, surface water, and soil.

For decades, billions of tons of coal ash have been dumped in unlined pits next to our lakes and rivers. Toxic chemicals from coal ash leak into those waterways and pollute groundwater and drinking water wells. Fugitive dust from coal ash dumps foul the air of nearby residents. And hundreds of aging earthen dams hold back billions of gallons of toxic sludge, threatening the communities that live downstream. This holds true for the Chesapeake Bay region on rivers like the Potomac, James, Patuxent and Susquehanna.

In 2015, the Obama administration adopted the first-ever national standards for the disposal of coal ash. The federal rule requires numerous critical safeguards, including regular inspection of ash ponds, monitoring of groundwater, shutdown of leaking dumps, shutdown of dumps in dangerous locations, cleanup when contamination is found, safe closure, and public posting of monitoring and inspection results. Following President Trump’s inauguration, however, industry groups demanded EPA weaken the rule. EPA agreed and is now proposing the very changes industry so badly wants.

Trump’s proposed remand rule clears the way for polluters, and polluter-funded politicians, to avoid the minimum national standards and employ their own weak standards for groundwater monitoring, coal ash cleanups, and several other core health and environmental protections included in the 2015 rule. As justification for the rollback, EPA points to millions of dollars of cost savings for owners of coal ash dumps. But the facts and science on which the 2015 rule was based have not changed. What has changed is the Trump EPA’s prioritization of polluter interests over the protection of public health.

On April 30, 2018, we filed coments opposing the proposed rollback that included the following:

EPA’s Remand Rule

1. The remand rule weakens groundwater protections and removes protections for children’s health.

EPA is proposing to allow states to set different, less protective, standards for cobalt, lead, molybdenum, and lithium. Additionally, EPA deliberately excluded a requirement that states consider risks to sensitive subgroups—including children—when setting alternative standards. Now, EPA is telling states it is okay to ignore those risks. EPA is also suggesting owners and operators of coal ash dumps write their own standards for those pollutants without direct government oversight.

2. The remand rule makes toxic cleanups discretionary.

EPA is proposing making cleanup of groundwater contamination discretionary—that is, to let polluters do nothing even where contamination above groundwater protection standards is found. More than half the U.S. population, including 99 percent of the rural population, relies on groundwater for its drinking water supply.

3. The remand rule eliminates the requirement that leaking unlined ponds install liners or close.

EPA is proposing to eliminate the requirement that unlined coal ash ponds that leak toxic chemicals above groundwater protection standards install liners or close by a date certain. EPA is proposing to remove the requirement that sources of coal ash pollution be controlled at all.

4. The remand rule removes the requirement for polluters to respond immediately to coal ash spills.

The existing rule requires that polluters “immediately” act to control the release of coal ash pollutants into the environment in the event of a spill. Shockingly, EPA is proposing to remove that requirement altogether.

5. The remand rule eliminates the requirement to close coal ash ponds that fail safety standards.

EPA is proposing to eliminate the requirement that coal ash ponds close if they fail to achieve minimum structural stability standards established in the 2015 rule. Catastrophic failure of coal ash dams threatens lives and entire communities and ecosystems.

6. The remand rule allows coal ash dumps to continue to operate in dangerous locations.

Under the existing rule, coal ash disposal units that are located in areas where harm to health and the environment is likely must demonstrate by October 17, 2018 that they are not violating location restrictions or they must cease accepting waste and close. Even coal ash dumps that are sitting in groundwater may no longer have to close by a date certain.

7. The remand rule allows political appointees to decide if a cleanup is adequate or even required.

EPA has proposed to allow directors of state agencies—political appointees, instead of professional engineers, to make at least 40 different technical determinations that would allow a facility to deviate from the requirements of EPA’s 2015 rule. The proposal allows the potentially politically driven judgment of a state regulator to be substituted for the technical judgment of an expert or the wisdom of EPA in setting the standards.

8. The remand rule shortens the post-closure care period and letting polluters off the hook.

EPA is now proposing to reverse course and allow states, or the owners themselves when there is no state permit program, to dramatically reduce the 30-year post-closure care period. Because hazardous chemicals leaking from ash dumps often move slowly through soil and groundwater, a short post-closure care period will mean that leaks go undetected and polluters avoid cleanup of their toxic messes.

9. The remand rule removes the requirement to post compliance data, leaving citizens in the dark.

Post certain information on publicly available websites allows folks who live and work near coal ash dumps to know that their communities are safe. However, EPA is considering eliminating important internet posting requirements, which will leave residents in the dark about coal ash pollution.


Power plants have had a free pass to pollute our water and have put the health of downstream communities at risk for far too long. The 2015 coal ash rule is currently protecting hundreds of American communities. Despite some weaknesses in the current rule, coal plant owners have already established publicly accessible websites and fugitive dust control plans, completed hundreds of inspections, and published critical groundwater quality data. The commonsense standards of the 2015 rule—which received more than a half-million supporting comments from the public—are helping to protect clean water and safeguard public health. EPA’s current attempt to weaken this rule is nothing more than a total giveaway to the industry and must be rejected.